National Insurance Company Limited v. P.S. Bhama Kumari and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939 MACA.No. 1509 of 2014** ## **AGAINST THE AWARD DATED 15-02-2014 IN OP(MV) NO. 1621/2005 of MACT,PATHANAMTHITTA** **APPELLANT/3RD RESPONDENT:--------------------------** **NATIONAL INSURANCE COMPANY LIMITED, PATHANAMTHITTA, NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI - 35.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENTS/RESPONDENTS:-** **--------------------------** **1. P.S.BHAMA KUMARI,** **W/O.LATE RADHAKRISHNAN NAIR, NAITHALAVELIL HOUSE, THALAYAR, KUTTOOR P.O., THIRUVALLA, PIN - 689 320.** **2. B.RAJAMMA,** **NAITHALAVELIL HOUSE, THALAYAR, KUTTOOR P.O., THIRUVALLA, PIN - 689 320.** **3. RAKHI R.NAIR, D/O.LATE RADHAKRISHNAN NAIR, NAITHALAVELIL HOUSE, THALAYAR, KUTTOOR P.O., THIRUVALLA, PIN - 689 320.** **4. RENJI R.NAIR,** **S/O.LATE RADHAKRISHNAN NAIR, NAITHALAVELIL HOUSE, THALAYAR, KUTTOOR P.O., THIRUVALLA, PIN - 689 320.** **R1-R4 BY ADVS. SRI.D.SAJEEV** **SMT.LIGEY ANTONY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** **M.A.C.A.No.1509 of 2014(A)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 14[th] day of February, 2018_ ## **J U D G M E N T** The National Insurance Company Limited, the 3[rd] respondent in O.P(MV)No.1621/2005 on the files of the Motor Accidents Claims Tribunal, Pathanamthitta filed this appeal challenging the quantum of compensation granted to the respondents in the said original petition. The respondents filed the above original petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of `10,00,000/- (Rupees Ten lakhs only) for the loss caused by the death of one Radhakrishnan Nair, in a road traffic accident occurred on 24.10.2005. According to them, they are the legal representatives of the deceased Radhakrishnan Nair. The offending private bus hit the Mini Lorry driven by him causing serious injuries to him, to which he **M.A.C.A.No. 1509 of 2014(A)** ## **-: 2 :-** had succumbed. According to the petitioners, the accident arose out of the use of the offending motor vehicle and the death was caused by the rash and negligent driving of the offending vehicle owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. The insurance company opposed the said application disputing the quantum of compensation and the cause of accident, but admitted the coverage of the insurance policy issued by them to the 1[st] respondent at the time of accident. After considering the evidence on record, the Tribunal passed the impugned award granting a compensation of `10,21,200/- (Rupees Ten lakhs twenty one thousand and two hundred only) to the petitioners. The adequacy and correctness of the quantum of compensation determined under various heads of claim are assailed on the ground that the **M.A.C.A.No. 1509 of 2014(A)** ## **-: 3 :-** same are exorbitant and disproportionate with the actual loss suffered by the petitioners. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. The parties are referred to as in the original petition. 3. The learned counsel for the appellant/3[rd] respondent contended that the quantum of compensation determined under the heads 'loss of love and affection', 'loss of consortium', 'funeral expenses' are exorbitant, unjust and unfair in view of the facts of the case and the evidence available on record. It is also contended that the Tribunal went wrong by taking 30% of the income towards future prospects. To fortify the said argument, the learned Standing Counsel for the insurance company cited the decision in _**National Insurance Company Limited v. Pranay Sethi and others [2017(5) KHC 350]**_ ## **M.A.C.A.No. 1509 of 2014(A)** ## **-: 4 :-** case. 4. Per contra, the learned counsel for the respondents contended that the quantum of compensation determined under the aforesaid heads is just and reasonable and there is no ground to interfere with the same. It is further contended that the quantum of compensation determined under the head 'loss of estate' is very low. Further, it is contended that no amount was granted under the head 'loss of mental agony', particularly, when at the time of death, the 3[rd] petitioner was aged 14 years, the 4[th] petitioner was aged 11 years and the mother was aged 68 years. 5. In view of the arguments advanced at the Bar, the point to be considered is, is the quantum of compensation determined under various heads of claim just and fair, in view of the facts involved **M.A.C.A.No. 1509 of 2014(A)** ## **-: 5 :-** in the case and the evidence on record. 6. It is not disputed that at the time of death, the deceased Radhakrishnan Nair was aged 42 years and his family was consisting of his wife, mother and two daughters aged 35, 62, 14 and 11 years respectively and he was a driver by profession. So also, he was the only earning member of his family. The status of the petitioners 1 to 4 as dependents of the deceased Radhakrishnan Nair was not disputed in the pleadings of the 3[rd] respondent Insurance Company. The determination of the quantum of compensation under various heads has to be evaluated, in view of the aforesaid admitted facts of the case. 7. It is contended that the Tribunal went wrong by granting `2,25,000/- towards 'loss of love and affection' and the said amount is exorbitant and **-: 6 :-** ## **M.A.C.A.No. 1509 of 2014(A)** unreasonable. In view of various decisions laid down by the Apex Court and this Court, such an exorbitant amount cannot be granted for 'loss of love and affection'. The learned counsel cited the decision in _**Pranay Sethi's** case_ (supra) and _**Sandhya Rani Debbarna v. National Insurance Company**_ [2016 (4) KLT 951 (SC)]. According to the learned counsel, the maximum amount that can be awarded for 'loss of love and affection is `1,00,000/- only. 8. On the other hand, the learned counsel for the respondents submits that there cannot be any cap for compensation under any of the heads, unless it is specifically capped by the status or any of the decisions of the Supreme Court and there is no decision of the Supreme Court capping the maximum amount that can be awarded for 'loss of love and affection'. In support of the said argument, the ## **M.A.C.A.No. 1509 of 2014(A)** ## **-: 7 :-** learned counsel had cited the decision in _**Kala Devi and others v. Bhagwan Das Chauhan and others**_ [2014 ACJ 2875]. 9. In the above context, it is to be borne in mind that there is no statutory capping or restriction in the determination of the quantum of compensation that can be granted to a claimant under the M.V. Act. What is mandated under Section 168 of the M.V. Act is just compensation. This Court is of the view that just compensation that can be awarded in a claim under the M.V. Act, depending upon the facts and circumstances of the case. 10. In _**Pranay Sethi's** case_ (supra), the Supreme Court has not fixed a cap for granting compensation for 'love and affection'. It is true that in the said decision, the Supreme Court has not accepted the claim of compensation for 'loss of care ## **M.A.C.A.No. 1509 of 2014(A)** ## **-: 8 :-** and guidance' of children. This Court is of the view that compensation for 'loss of love and affection' is entirely different from compensation for 'loss of care and guidance'. So, _**Pranay Sethi's** case_ (supra) will not stand in the way of granting more than one lakh as compensation for 'loss of love and affection'. 11. The learned counsel for the appellant/3[rd] respondent cited _**Jyni and Others v. Raphel P.T. And Others**_ [2016(2) KHC 870] and contended that this Court held that the reasonable amount that could be awarded by the Tribunal towards 'loss of love and affection' is only `1,00,000/maximum. As rightly submitted by the learned counsel for the respondents in _**Kala Devi's** case_ (supra), the Supreme Court has granted `2,00,000/for 'loss of love and affection'. Therefore, it ## **M.A.C.A.No. 1509 of 2014(A)** ## **-: 9 :-** cannot be said that no amount can be granted more than `1,00,000/-, as contended by the learned counsel for the appellant/3[rd] respondent. In view of the decision of the Supreme Court in _**Kala Devi's** case_ (supra), the decision of this Court in _**Jyni 's** case_ (supra) will not stand in the way of granting more than `1,00,000/- as compensation for 'loss of love and affection'. 12. Let's examine the justness and fairness of the quantum of compensation granted in the instant case. In the instant case, `2,25,000/- was granted towards loss of love and affection. As I have held above, the reasonableness and justness of the quantum of compensation granted under the head 'loss of love and affection' in the instant case has to be considered, in view of the circumstances surrounding each member of the family and the status **M.A.C.A.No. 1509 of 2014(A)** ## **-: 10 :-** of each dependent described in paragraph No.5. In the instant case, the family consists of four dependents and 'loss of love and affection' of each child and mother has to be borne in mind, while determining the quantum of compensation for 'loss of love and affection'. More importantly, the 3[rd] and 4[th] petitioners are daughters aged 14 and 11 years only. In the above view, this Court finds that `2,25,000/- is a little excessive and the same would stand reduced to `1,50,000/-. 13. Secondly, it is contended that `25,000/granted for 'funeral expenses' is exorbitant, in view of the decision in _**Pranay Sethi's** case_ (supra). I accept the said argument in view of the amount fixed by the Supreme Court in the said decision and the same will stand reduced to `15,000/- from `25,000/-, in the absence of any contra evidence to **M.A.C.A.No. 1509 of 2014(A)** ## **-: 11 :-** prove the spending of an amount more than `15,000/as 'funeral expenses'. 14. Thirdly, it is contended that `1,00,000/granted for 'loss of consortium' is also exorbitant, in view of the aforesaid decision. Going by _**Pranay Sethi's** case_ (supra), it is seen that the Apex Court held that the maximum amount that be awarded for 'loss of consortium' is `40,000/-. Therefore, the compensation for 'loss of consortium' would stand reduced to `40,000/- from `1,00,000/-. 15. Fourthly, it is contended that the Tribunal went wrong by taking 30% of the monthly income for determining the 'future prospects' of the deceased and the same was made in violation of the aforesaid decision. 16. As rightly submitted by the learned counsel for the appellant in _**Pranay Sethi's** case_ (supra), the **M.A.C.A.No. 1509 of 2014(A)** ## **-: 12 :-** Constitutional Bench held that in case the deceased was a self employed or on a fixed salary, an additional of 25% of the established income should be taken for determining the 'future prospects' of the deceased. In the above view, the monthly income of the deceased would stand reduced from `5,200/- to `5,000/- only. Therefore, the petitioner is entitled to get `6,30,000/-(5,000 x 12 x 14 x[3] /4) towards 'loss of dependency'. 17. On the other hand, the learned counsel for the respondents contends that no amount was granted under the head 'compensation for mental agony' and `5,000/- was given towards 'loss of estate'. As rightly pointed out by the learned counsel for the respondent, according to _**Pranay Sethi's** case_ (supra),`15,000/- can be granted for 'loss of estate'. Consequently, compensation granted under ## **M.A.C.A.No. 1509 of 2014(A)** ## **-: 13 :-** the head 'loss of estate' would stand enhanced and modified to `15,000/- from `5,000/-. 18. Coming to compensation for 'mental agony', the learned counsel for the appellant advanced arguments to justify the Tribunal for rejecting the claim. According to the learned counsel for the appellant, the compensation for 'mental agony' is also implied in compensation for 'loss of love and affection' which comes under the conventional head. I am unable to agree with the said argument. I am of the view that the compensation for 'loss of love and affection' and compensation for 'mental agony' are entirely different and distinct. In the instant case, the 3[rd] and 4[th] petitioners are daughters of the deceased and they were aged 14 years and 11 years respectively at the time of death. Indian society is founded on ## **M.A.C.A.No. 1509 of 2014(A)** ## **-: 14 :-** family system and it is the duty and responsibility of the father to give daughters in marriage, when they attain majority. Therefore, the sad and sudden demise of the father when the daughters are minors would affect their future. The mental agony of the unmarried daughters have to be looked at the angle of their marriage. Their 'mental agony', when looking at their future, cannot be ignored. In the above view, the Tribunal is not justified in rejecting the claim under the head compensation for 'mental agony'. The respondents claimed `25,000/towards 'mental agony' and the same would stand allowed as such. In the above analysis, the total compensation would stand redetermined and the total amount payable to the respondents is `8,86,000/- 19. It is submitted by the learned counsel for the appellant that 70% of the award amount had **M.A.C.A.No. 1509 of 2014(A)** ## **-: 15 :-** already been deposited and the learned counsel for the petitioners also agree with the said submission. Therefore, the appellant is directed to deposit the balance amount only with 9% interest from the date of petition till realisation, within a period of two months from the date of receipt of a copy of this judgment. All other findings of the Tribunal will stand undisturbed and operative. The release and apportionment shall be as stipulated by the Tribunal. This Motor Accident Claims Appeal is allowed in part. Sd/- **K. HARILAL** **JUDGE** vgd/DST //True copy// P.A. To Judge